A landmark ruling in the Supreme Court of Bermuda giving same-sex couples equal rights on immigration and employment issues has been cited as further evidence that the Cayman Islands needs to modernize its own laws.
Premier Alden McLaughlin, currently in London along with Bermuda Premier Michael Dunkley and other Overseas Territories leaders, said the Cayman Islands would likely face a similar court defeat if it did not alter its own policies on Immigration.
The atmosphere in Bermuda, where a church-led protest group has raised a petition in defense of traditional marriage, mirrors the conflict in Cayman, where traditional Christian values have been cited as justification for different treatment of homosexual couples.
Mr. McLaughlin said, “The ruling from the Bermuda Supreme Court concerning recognition of same-sex unions reinforces my belief that the Cayman Islands must review and make necessary changes to our immigration regulations.
“If we don’t amend those regulations so as not to discriminate, I have no doubt that we will face a similar judgement by the Grand Court here.”
He said the necessary changes would be made in the regulations and not the law itself and could be addressed by Cabinet and not in the Legislative Assembly.
The Cayman Islands is currently facing a “test case” on the issue in the form of an appeal brought by former law professor Leonardo Raznovich against the Immigration Board’s decision not to allow him to be listed as a dependent on his male partner’s work-permit, a request routinely approved for married couples.
Mr. McLaughlin has indicated that government will seek to deal with that specific issue without introducing wider legislative recognition of same-sex unions at this point.
James Austin-Smith, chairman of the Cayman Islands Human Rights Commission, has previously noted that government needs to make much broader changes to its laws to be compliant with the European Convention on Human Rights, which applies to both Bermuda and Cayman.
Mr. Austin-Smith has indicated that government immediately needs to introduce legislation to recognize same-sex unions and outlaw discrimination on the basis of sexual orientation.
He said the law had been clarified through a precedent-setting ruling by the European courts earlier this year in a case brought against Italy to determine whether it violated human rights legislation by failing to recognize same-sex unions.
Bermuda Chief Justice Ian Kawaley cited the same judgment in his ruling on Friday.
He ruled that aspects of Bermuda’s Immigration and Protection Act were incompatible with the islands’ human rights legislation because they allowed discrimination against same-sex couples. The immediate impact of the ruling will be that same-sex partners of Bermudians will be afforded the same rights to reside and seek employment as spouses of Bermudians.
Senator Michael Fahy, the Minister of Home Affairs, told the Bermuda media Friday that the ruling could have wider consequences on legislation relating to bankruptcy, estates, wills, health insurance, pensions and social insurance.
Mr. Kawaley’s ruling dealt specifically with the aspects of the legislation relating to employment, as that was the complaint brought by the Bermuda Bred Company, a social justice campaign group.
But he suggested that Bermuda ultimately would be required to accept same-sex partnerships because of the European Court’s ruling in the Italian case.
He wrote, “Bermuda appears to be under a positive international law duty under Article 8 of the ECHR to create some coherent legal framework for the recognition of same-sex relationships formed by Bermudians.”
Several experts, including Mr. Austin-Smith, have made the same point in respect to Cayman’s laws.
Mr. Raznovich said Tuesday he was pleased government is looking to amend the Immigration Law as a matter of urgency.
He added that the Bermuda ruling gave further weight to the argument for change in Cayman.
“The Supreme Court of Bermuda’s decision is consistent with, and lends further strong support to, our legal position in the Cayman Islands,” he said.
“The Supreme Court of Bermuda has acknowledged in its judgment the implications of the decision of the European Court of Human Rights in the Oliari case [the Italy case] for all British Overseas Territories to which the European Convention on Human Rights has been extended.”